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Dianne Hensley

Ken Paxton does Ken Paxton thing

Film at 11.

Best mugshot ever

Texas Attorney General Ken Paxton’s office is not defending a state agency that is being sued for punishing a judge who refuses to officiate gay marriages.

It’s the most recent in a handful of cases in which Paxton, a Republican, has stepped away from one of the basic requirements of his job because the state’s actions conflict with his views of the Constitution.

Just days after the 2015 Supreme Court decision legalizing same-sex marriage, Paxton issued a legal opinion arguing that Texas clerks and judges with religious objections could not be forced to officiate those marriages or process the paperwork. In the nonbinding opinion, Paxton, also pledged to “be a public voice for those standing in defense of their rights.”

That argument will be tested in Texas courts for the first time after Justice of the Peace Dianne Hensley of Waco sued the Commission on Judicial Conduct for issuing her a warning last year. Since 2015, the general practice in Texas has been that judges either perform all types of marriages or none, if they have religious objections to same-sex marriages. But Hensley argued she could continue officiating straight marriages while referring same-sex couples to others because of the conflict with her religious beliefs.

The attorney general would have been expected to represent the commission as part of his charge to defend state agencies, putting Paxton in the awkward position of arguing against his 2015 opinion.

Instead, the attorney general’s office is not representing the agency.

“We believe judges retain their right to religious liberty when they take the bench,” spokesman Marc Rylander said in a statement.

Jacqueline Habersham, interim executive director of the Judicial Commission, has so far acted as counsel for the commission in the case. Habersham declined to comment.

See here and here for the background. The Trib notes another dimension to this.

Paxton declined to defend a different state agency, the Texas Ethics Commission, in a lawsuit filed years ago by Empower Texans, a hardline conservative group that has been an important political ally to him. And he has opted not to defend state laws, like the Texas Advance Directives Act, when they conflict with his interpretation of the Constitution.

Hensley is represented in the case by the First Liberty Institute, a high-profile Plano-based religious liberty law firm with deep ties to Paxton’s office that reach back to the earliest days of his political career. Hensley’s lawyer, Jonathan Mitchell, is a former solicitor general of Texas. And Paxton and the First Liberty Institute have often been allies in religious liberty fights in Texas, collaborating on a lawsuit against the city of San Antonio after it banned Chick-fil-A from opening a location in its airport. Jeff Mateer, now Paxton’s top aide, worked as the firm’s general counsel before joining the attorney general’s office.

Kelly Shackelford, the group’s president and CEO, has endorsed Paxton and contributed to a legal defense fund Paxton has used to fight off a four-year-old criminal indictment for securities fraud.

Nothing ol’ Kenny won’t do to help his buddies. In this sense, it’s just as well that he’s peaced out of the litigation, because literally any alternate arrangement for the State Commission on Judicial Conduct, whether they represent themselves or hire an outside firm, would be better than having an attorney that’s biased against you as your advocate. The solution here is the same as it’s ever been – we need a better AG. We tried in 2018, we’ll need to finish the job in 2022. He’s not going to change, we have to swap him out.

Anti-gay Waco JP sues for the right to be an anti-gay JP

Ugh.

A Waco judge who received a public warning last month for refusing to officiate same-sex marriages filed a lawsuit against the state agency that issued the warning, claiming the governmental body violated state law by punishing her for actions taken in accordance with her faith.

The First Liberty Institute, a high-profile Plano-based religious liberty law firm closely aligned with the Texas Attorney General’s Office, will represent the judge, Dianne Hensley, in the lawsuit filed Tuesday in McLennan County District Court.

Shortly after the U.S. Supreme Court asserted the constitutional right for same-sex couples to marry in the landmark 2015 Obergefell decision, Hensley refused to officiate any weddings. But in August 2016, she decided to resume officiating weddings between men and women, and said she would “politely refer” same-sex couples who sought her services to others in the area.

“For providing a solution to meet a need in my community while remaining faithful to my religious beliefs, I received a ‘Public Warning.’ No one should be punished for that,” Hensley said in a statement.

Hensley, who claims the state violated the Texas Religious Freedom Restoration Act, is seeking a declaratory judgment from the court decreeing that any justice of the peace may refuse to officiate a same-sex wedding “if the commands of their religious faith forbid them to participate in same-sex marriage ceremonies.”

[…]

Ricardo Martinez, Equality Texas CEO, said in a statement that as a justice of the peace, Hensley took an oath “to serve all Texans.”

“These elected officials continue to waste taxpayer money in an obsession to discriminate against gay and transgender Texans. This is not what Texans want or expect from elected officials,” Martinez said. “Discrimination of any kind is unacceptable. Their actions are mean spirited, futile, a waste of taxpayer money and most importantly, it’s wrong.”

See here for the background. Look, if Judge Hensley had “politely referred” mixed-race couples to other JPs because her religious beliefs were that only people of the same race should get married, no one would take her seriously. If she were a clerk at the DMV who refused to process drivers license applications from women because her religious beliefs were that women should not drive, she’d be fired on the spot. As a public servant, she serves the whole public, not just the public she approves of. That means she can perform weddings for anyone who comes before her, she can perform no weddings as she had originally chosen, or she can find another line of work. It’s that simple.

This was filed in a state court, as the allegation is that the “public warning” violated a state law. I feel like this will eventually wind up as a federal case, especially if she wins. It’s an open question at this point whether the AG’s office will represent the defense, or the State Commission (which is authorized to defend itself) will do it. All things considered, I’d prefer the latter. This case is going to be a hot mess, so buckle up for it. The Waco Tribune has more.

In which Greg Abbott moves to protect an anti-gay judge

First, there was this.

The Texas Commission on Judicial Conduct on Monday issued a public warning to a Republican judge from Waco who refuses to perform same-sex marriages but still performs them for opposite-sex couples.

McLennan County Justice of the Peace Dianne Hensley told the commission that the way she has handled the matter is based on her “conscience and religion” despite the 2015 Supreme Court decision legalizing same-sex marriage.

“I sought a solution so that anyone in McLennan County who wants to get married can get married,” Hensley said in an emailed statement on Tuesday. “I have, do, and always will, follow the law.”

Hensley has spoken publicly about her decision, including in a 2017 article in the Waco Tribune-Herald in which she said she felt she was entitled to a “religious exemption.”

“I’m entitled to accommodations just as much as anyone else,” Hensley was quoted saying.

We’re all aware of the bullshit arguments for “accommodation”, the TL;dr summary of which is No, you’re not, you’re entitled to follow the law and treat everyone equally or resign from the bench. People have a right to get married. You can choose to marry any couple with a license and a wish to be married, or you can choose to not enter that entirely optional part of the job. To say “these people can get married but those people can’t” is illegal, insulting, and frankly worth a much harsher penalty from the State Commission on Judicial Conduct than this jackass received.

And then we got the backstory.

Two former members of the Texas State Commission on Judicial Conduct say Gov. Greg Abbott removed them from the panel because he disagreed with their position on a case involving same-sex marriage.

Amy Suhl, a retired information technology executive from Sugar Land, and retired U.S. Army Lt. Col. Maricela Alvarado, of Harlingen, were appointed to the commission as public members in June 2018.

They served as voting members for nine months while waiting for the Texas Senate to confirm their appointments. Then, when they were about to come up for a Senate vote, the governor withdrew the nominations.

It’s extremely uncommon for Abbott’s office to go back on an appointment. Since 2017, only one other nominee has been withdrawn for a reason other than a resignation or death, records show.

Suhl and Alvarado, in recent interviews with Hearst Newspapers, say they were told that the governor had decided to go in a different direction. But they believe Abbott pushed them out because of their votes to sanction a Waco judge who officiates opposite-sex marriages but refuses to conduct gay marriages.

Suhl made an audio recording of a meeting with the governor’s staff and a later phone call. The recordings, which were reviewed by Hearst Newspapers, shows the staffers were encouraging her to act with Abbott’s views in mind.

“When we appoint people, we appreciate so much that people are willing to serve and hope that people understand that they’re serving the governor, not themselves,” one staffer said.

Suhl said the governor’s office wanted to “change them out with the hope that maybe more people would vote the way they want.”

“I thought it was wrong,” she said. “That commission is there to serve the public, to make sure judges are operating ethically, and not to serve any one group’s interest.”

Suhl is of course correct, in the same way that the US Attorney General is supposed to represent and serve the people, not be the personal attorney of the President. I admire her and Lt. Col. Alvarado for their convictions and their willingness to call BS on this. This, at a most fundamental level, is what corruption is. It’s not just about using power for personal gain, it’s also about using it to subvert and go around existing structures and processes to achieve a result that couldn’t have been achieved by letting the system work as designed. It’s about putting pressure on people who were hired or appointed to do a job to do that job in a bent and perverse way, to rig an outcome. This is what that old saying “power corrupts, and absolute power corrupts absolutely”. Greg Abbott, like Donald Trump, wields his power in service of himself. He does it because he wants to, and because he thinks he’s entitled to. If he had picked less honorable people to serve on this Commission, he might well have gotten away with it, too.

By the way, remember how Abbott rushed to condemn Rick Miller, because (he said) Miller’s comments were “inappropriate and out of touch with the values of the Republican Party”? Clearly, discriminating against some people is inappropriate and out of touch with Republican values, but discriminating against some other people is just peachy. Good to know. The Trib has more.

(Full disclosure: Amy Suhl is retired from the company I work for. I know who she is, though I had no idea about this appointment she was to have had. We never worked together – ours is a big company – and she may or may not know who I am